Full opinion text
ON PETITION FOR REHEARING AND REHEARING EN BANC EDITH H. JONES, Circuit Judge: The Petition for Rehearing is DENIED. Judge Dennis dissents from the court’s denial of rehearing en banc and his dissent is attached. The court having been polled at the request of one of its members, and a majority of the judges who are in regular active service and not disqualified not having voted in favor (Fed. R.App. P. 85 and 5th Cir. R. 35), the Petition for Rehearing En Banc is DENIED. In the en banc poll, 3 judges voted in favor of rehearing (Judges Dennis, Graves, and Costa) and 12 judges voted against rehearing (Chief Judge Stewart and Judges Jolly, Davis, Jones, Smith, Clement, Prado, Owen, Elrod, Southwick, Haynes, and Higginson).
JAMES L. DENNIS, Circuit Judge, dissenting: I respectfully but emphatically dissent from the court’s refusal to rehear this case en banc. In upholding Texas’s unconstitutional admitting-privileges requirement for abortion providers and medication-abortion restrictions, the panel opinion flouts the Supreme Court’s decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), by refusing to apply the undue burden standard expressly required by Casey. Instead, the panel applied what effectively amounts to a rational-basis test — a standard rejected by Casey — under the guise of applying the undue burden standard. The panel’s assertion that it applies Casey is false because it does not assess the strength of the state’s justifications for the restrictive abortion laws or weigh them against the obstacles the laws place in the path of women seeking abortions, as required by Casey. A correct application of the Casey undue burden standard would require that the admitting-privileges provision and medication-abortion restrictions be stricken as undue burdens because the significant obstacles those legal restrictions place in the way of women’s rights to previability abortions clearly outweigh the strength of their purported justifications. If not overruled, the panel’s sham undue burden test will continue to exert its prec-edential force in courts’ review of challenges to similar types of recently minted abortion restrictions in Texas, Louisiana, and Mississippi. See Jackson Women’s Health Org. v. Currier, 760 F.3d 448 (5th Cir.2014); Whole Woman’s Health v. Lakey, No. 1:14-C V-284-LY, - F.Supp.3d -, 2014 WL 4346480 (W.D.Tex. Aug. 29, 2014); June Med. Servs., LLC v. Caldwell, No. 3:14-CV-525-JWD-RLB, 2014 WL 4296679 (M.D.La. Aug. 31, 2014). Moreover, the panel opinion deepens a circuit split, and has been criticized by other federal courts. Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905, 914 (9th Cir.2014) (“We conclude that Abbott ... [is] inconsistent with the undue burden best as articulated and applied in [the relevant Supreme Court case law.]”); see also Planned Parenthood Se. Inc., v. Strange, No. 2:13-CV-405-MHT (WO), 9 F.Supp.3d 1272, 1283-84, 2014 WL 1320158, at *9-10 (M.D.Ala. Mar. 31, 2014) (hereinafter “Strange I ”) (criticizing Abbott panel’s application of the Casey undue burden test). In disclaiming its duty to correct the panel’s perversion of the undue burden standard, a majority of this court effectively ensures that laws, like the Texas law challenged here, that substantially chop away at a woman’s right to a previability abortion, will be given only a modicum of scrutiny, essentially giving states carte blanche with respect to the regulation of the right to an abortion. This court’s abject deference to state authority annihilates any “real substance” to the vital individual constitutional interest at stake: “the urgent claims of the woman to retain the ultimate control over her destiny and her body, claims implicit in the meaning of liberty.” Casey, 505 U.S. at 869, 112 S.Ct. 2791. In Casey, the Supreme Court of the United States reaffirmed the right announced in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) — “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State.” 505 U.S. at 846, 112 S.Ct. 2791 (plurality opinion). The Casey Court simultaneously recognized and endorsed “the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.” Id. A controlling plurality of the Court, striking a balance between the state’s legitimate interests and a woman’s constitutionally protected liberty interest, announced that a State regulation goes too far in pursuing its legitimate interests when it imposes an “undue burden” on a woman’s ability to choose an abortion. Id. at 874, 112 S.Ct. 2791 (joint opinion of O’Connor, Kennedy, and Souter, JJ.). All federal courts are obliged to apply the principles and governing standard announced in Casey to determine the constitutionality of a state law challenged as imposing an undue burden on the woman’s ability to choose to procure an abortion. We must perform this duty in order to give “real substance to the woman’s liberty,” id. at 869, 112 S.Ct. 2791, while at the same time fully honoring the State’s ability to pursue, in good faith, its own acknowledged legitimate interests. On July 18, 2013, the Governor of Texas signed into law House Bill 2 (“H.B.2”), which contains several provisions regulating abortions. Among its provisions, H.B. 2 requires that all doctors who provide abortions must' have admitting privileges at a hospital within 30 miles of where each abortion is performed. See Tex. Health & Safety Code § 171.0031(a)(1). On September 27, 2013, the Plaintiffs filed this lawsuit in the United States District Court for the Western District of Texas against the Attorney General of Texas, Gregory Abbott, and others, challenging the constitutionality of, inter alia, H.B. 2’s admitting-privileges requirement. After a bench trial, the district court held that the admitting-privileges requirement is unconstitutional and enjoined its enforcement. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 951 F.Supp.2d 891, (W.D.Tex.2013). A motions panel of this court stayed the decision pending appeal, Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406 (5th Cir.2013) (“Abbott I ”), and a merits panel reversed and rendered judgment for the State of Texas, except that “the admitting privileges requirement, ... may not be enforced against abortion providers who timely applied for such privileges under the statute but are awaiting a response from a hospital.” 748 F.3d 583, 595 (5th Cir.2014) (“Abbott II”). The Abbott II panel decision conflicts with the Supreme Court’s decision in Casey in various ways. This dissenting opinion will be limited to a discussion of Abbott II’ s analysis and conclusions regarding H.B. 2’s admitting-privileges provision because it is within that portion of the panel decision where the panel most egregiously errs in its application of Casey. Speeifi-cally, this dissent will focus on three main points of error, any one of which warrants en banc consideration or correction by the Supreme Court. First, the Abbott panel failed to weigh the magnitude of the burden that the admitting-privileges requirement places on a woman’s right to abortion against the strength of the State’s justification for the law, in order to determine whether the State’s justifications are robust enough to warrant the restriction and corollary burdens. As will be explained infra, this weighing of burdens and justifications constitutes the very heart of the inquiry into whether a burden is “undue” within the meaning of Casey, and the Abbott II panel’s patent failure to conduct this inquiry necessitates en banc review. Second, the panel misinterpreted and misapplied Casey’s “large fraction” test by disregarding the effect of the law in light of the relevant context and circumstances faced by the women for whom the law is relevant (i.e.■ for whom it actually burdens). Finally, it is also necessary to reconsider the panel decision en banc because, although purporting to apply clear error review, as required by Supreme Court and circuit precedents, the panel improperly reviewed the district court’s factual findings de novo, and thereby erroneously substituted the panel’s own fact finding for that of the district court. In other words, the panel opinion is based on both erroneous legal precepts and improper de novo appellate court factual findings. The Abbott II panels serious constitutional errors in misapplying the Casey undue burden standard to the admitting-privileges requirement and its erroneous substitution of its factual findings for the district courts are more than sufficient reason for an en banc rehearing. I. Casey’s Undue Burden Standard In Casey, the Court reaffirmed the “central right” established in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) — that a “State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” Casey, 505 U.S. at 879, 112 S.Ct. 2791. As the Court explained, “[t]he woman’s right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce.” Id. at 871, 112 S.Ct. 2791. While approving of Roe’s central premises, the controlling Casey plurality rejected a strict-scrutiny standard of review that cases following Roe had adopted and applied to challenges to abortion regulations, id. at 871-72, 112 S.Ct. 2791, and for which Justice Blackmun argued in his partial dissent, id. at 926, 112 S.Ct. 2791 (Blackmun, J.) (urging the court to apply strict scrutiny to a State’s abortion restrictions). The Casey plurality likewise rejected mere rational-basis review — the standard urged by Chief Justice Rehnquist in dissent. Id. at 966, 112 S.Ct. 2791 (Rehnquist, C.J.). The controlling Casey plurality read Roe as acknowledging both the importance of a woman’s right to make the ultimate decision of whether to terminate her pregnancy previability, as well as the State’s legitimate interests in protecting fetal life and preserving the health of the pregnant woman. Id. at 872, 112 S.Ct. 2791. In light of these competing interests, and in an effort to strike a balance between them, the Casey plurality announced the undue burden standard, which functions as a reconciliatory standard between strict scrutiny and rational-basis review. See Casey, 505 U.S. at 878, 112 S.Ct. 2791 (“To protect the central right recognized by Roe v. Wade while at the same time accommodating the State’s profound interest in potential life, we will employ the undue burden analysis.”). As the Court has emphasized, the undue burden test “struck a balance. The balance was central” to the Casey Court’s holding. Gonzales v. Carhart, 550 U.S. 124, 146, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007). Casey thus adopted a compromise position, between the strict-serutiny review endorsed by Justice Blackmun and the rational-basis review urged by Chief Justice Rehnquist. However, the Casey plurality did not adopt ordinary, intermediate scrutiny. Rather than apply one of the recognized tiers of scrutiny, the Court adopted the undue burden test, and in so doing, pointed to two ballot-access cases — namely Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), and Norman v. Reed, 502 U.S. 279, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992) — that similarly applied a standard of review that does not squarely fit into the established tiers of scrutiny. Casey, 505 U.S. at 873-74, 112 S.Ct. 2791. The ballot access cases apply a flexible balancing test that provides the State with leeway to regulate for a valid purpose, where such regulation does not unnecessarily infringe upon individuals’ voting rights. Id. The Court explained that the “abortion right is similar” in that courts must weigh the individual woman’s right against the State’s legitimate interests. Id. Therefore, we may look to the ballot access cases for guidance on how to apply the undue burden standard. See id.; see also Strange I, 9 F.Supp.3d at 1283-84, 2014 WL 1320158, at *9-10 (discussing the Casey’s Court’s reference to the ballot-access cases as indicative that the ordinary tiers of scrutiny do not apply to the undue burden standard announced in Casey but rather, “slight burdens may merit slight scrutiny, while heavy burdens warrant heavy scrutiny”); cf. Okpalobi v. Foster, 190 F.3d 337, 354-55 (5th Cir.1999), vacated on other grounds on reh’g en banc, 244 F.3d 405 (5th Cir.2001) (explaining that we are not without guidance to apply the undue burden test’s purpose analysis, because a similar inquiry is mandated in, for example, voting rights cases). Anderson and Norman apply a fluid balancing test that does not function as a “ ‘litmus-paper test’ that will separate valid from invalid restrictions.” Anderson, 460 U.S. at 789, 103 S.Ct. 1564. Rather, a court must first consider the character and magnitude of the asserted injury to the rights protected by the [Constitution] that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff’s rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional. Id. (emphasis added). The Casey plurality’s comparison to Anderson and Norman as it explained the competing interests at stake in challenges to abortion regulations reveals that, like the standard the Court applied in the ballot-access cases, the undue burden test requires a court to consider the “character and magnitude of the asserted injury,” Anderson, 460 U.S. at 789, 103 S.Ct. 1564, and determine whether the “corresponding interest [is] sufficiently weighty to justify the limitation,” Norman, 502 U.S. at 288-89, 112 S.Ct. 698. Thus, the undue burden test necessarily contains a proportionality principle: if a regulation has the effect of imposing a particularly severe obstacle upon a woman’s right to an abortion, then the government’s justification must be correspondingly strong. See, e.g., Casey, 505 U.S. at 874, 901, 112 S.Ct. 2791; Anderson, 460 U.S. at 789, 103 S.Ct. 1564; see also Strange I, 9 F.Supp.3d at 1287, 2014 WL 1320158, at *13; Van Hollen, 738 F.3d at 798 (“The feebler the medical grounds, the likelier the burden, even if slight, to be ‘undue’ in the sense of disproportionate or gratuitous.”). The Casey Court adopted this flexible undue burden test, seeking to balance the competing interests inherent in every challenge to an abortion regulation. In so doing, the Court explained that “an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Casey, 505 U.S. at 877, 112 S.Ct. 2791. The undue burden test thus requires that we determine: (1) whether the statute has a purpose of placing a substantial obstacle in the path of a woman seeking an abortion, and (2) even if the purpose of the regulation is for a valid state interest, whether the law has such an effect. Id. If the state’s law has either the purpose or effect of placing a substantial obstacle in the path of a woman’s choice to obtain a previability abortion, it “cannot be considered a permissible means of serving its legitimate ends.” Id. To determine whether the regulation has the effect of creating a substantial obstacle to a woman’s right to a previability abortion, courts must look to whether the law imposes an undue burden upon a “large fraction of the cases in which [the regulation] is relevant.” Id. at 895, 112 S.Ct. 2791. As explained more fully infra, this inquiry requires weighing the magnitude of the burden imposed against the extent and strength of the Statels justification for the law. See, e.g., Casey, 505 U.S. at 900-01, 112 S.Ct. 2791 (balancing the State’s legitimate. interest in collecting patient information— which the Court deemed a “vital element of medical research” — against the only “slight” increase in cost of abortions, and therefore upholding the challenged record-keeping and reporting requirements). Applying this undue burden standard to the challenged provisions of the Commonwealth of Pennsylvania’s Abortion Control Act of 1982, the Casey Court facially invalidated one provision of the Act — the spousal notification regulation, which required married women to seek consent from their husbands before obtaining an abortion. Casey, 505 U.S. at 887-88, 112 S.Ct. 2791. The Commonwealth attempted to defend the spousal notification provision by contending that it did not impose a substantial obstacle upon a large fraction of women seeking abortions. Id. at 894, 112 S.Ct. 2791. Specifically, the Commonwealth argued that eighty percent of women seeking abortions are not married and, of the married women seeking abortions, about 95 percent chose to notify their husbands of the procedure. Id. Therefore, the Commonwealth reasoned, only approximately one percent of women — a small fraction of women seeking abortions— would be burdened by the regulation. Id. The Casey Court rejected this argument and explained that “[t]he proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” Id. at 894, 112 S.Ct. 2791. “The analysis does not end with the one percent of women upon whom the statute operates; it begins there.” Id. The Court held that the spousal notification regulation had the effect of imposing a substantial obstacle upon a large fraction of women because within the one percent of women, there was a “significant number of women” for whom the provision functioned as a restriction because they “fear for their safety and the safety of their children [and] are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases.” Id. (emphasis added). In drawing this conclusion, the Court considered the effect of the provision in light of the particular, real-world circumstances of the women “most affected by this law.” Id. at 897, 112 S.Ct. 2791 (explaining that an effect of the spousal notification provision is that women who “most reasonably fear the consequences of notifying their husbands that they are pregnant [] are in the gravest danger”). Subsequently, in Gonzales v. Carhart, the Supreme Court applied Casey to review a challenge to the Partial-Birth Abortion Ban Act of 2008, which prohibited a particular form of surgical abortion, known as “intact dilation and extraction” or “intact D & E,” a procedure performed in the second trimester of pregnancy that is a variation on another surgical abortion procedure, referred to as D & E. 550 U.S. at 135-36, 127 S.Ct. 1610. Gonzales applied Casey’s undue burden test — addressing first the purpose of the Act and then its effect, considering both the State’s legitimate interests and the extent of the Act’s infringement upon a woman’s right to procure a previability abortion. First, the Court analyzed the purpose of the Act and concluded that it actually furthered the State’s legitimate interests in protecting fetal life and thus satisfied the first prong of the Casey undue burden analysis. Next, the Court analyzed the effect, observing that the Act’s “furtherance of legitimate government interests bears upon,” but is not dispositive of, whether the Act has the effect of placing a substantial obstacle on women. Id. at 161, 127 S.Ct. 1610. The Court concluded that because there are safe, alternative means for women to exercise their right to choose to terminate a pregnancy previability, Congress’ ban on a single procedure did not have an effect of placing a substantial obstacle in the way of a woman’s right to obtain an abortion. Id. at 164, 127 S.Ct. 1610. On balance, in light of the fact that the Act actually advanced the government’s legitimate objectives, and that it did not place a substantial obstacle in the path of a woman seeking to procure a previability abortion, the Court upheld the Act as constitutional against Plaintiffs’ challenge. Id. at 166-67, 127 S.Ct. 1610. Gonzales thus applied Casey’s two-part balancing test and did not introduce any additional aspects to the undue burden standard. See id. at 168-69, 127 S.Ct. 1610 (Thomas, J., concurring, joined by Scalia, J.) (noting that he concurs in the opinion “because it accurately applies” Casey). Accordingly, this court is obliged to subject the challenged provisions of H.B. 2 to Casey’s undue, burden balancing test. We must inquire as to whether the law has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion. Casey, 505 U.S. at 877, 112 S.Ct. 2791. Pursuant to Casey, we begin the “effects” analysis by considering the real-life situation of the women who are actually affected by the regulation and ask whether, given these women’s circumstances and the particular context in which the law is enacted, a substantial obstacle is placed in the way of a large fraction of these women whose liberty rights are actually restricted by the law. See id. at 894-97, 112 S.Ct. 2791. In so doing, we must look to the specific group of women for whom the provision in question is relevant (ie., for whom it is a restriction), and determine if the law places a substantial obstacle in the way of a large fraction of those women. We must consider these women’s circumstances — for example, whether they are impoverished or are prevented by some other relevant social factor, such as local hostility and aggression towards abortion clinics and providers' — in combination with the direct effects of the admitting-privileges requirement, in order to determine the extent of the burden that results from the regulation. See id. at 897, 112 S.Ct. 2791 (considering the particular circumstances of women in abusive relationships). To determine whether the obstacle or burden is undue, we must analyze the strength of the state’s justifications for the law and weigh it against the magnitude of the burden imposed upon a woman’s liberty interest. Id. at 847, 900-01, 112 S.Ct. 2791; see also id. at 882-83, 112 S.Ct. 2791 (weighing the State’s legitimate interest in “protecting the life of the unborn by ... ensuring a decision that is mature and informed” with the slight burden imposed by requiring physicians to provide women with literature regarding the “consequences to the fetus”). Before addressing the ways in which the Abbott II panel misread the Supreme Court precedent and neglected to adhere to the Casey undue burden test, I will review the district courts’ findings of fact that support its legal conclusions that H.B. 2’s admitting-privileges provision imposes substantial obstacles and that the State’s justifications for the provision are weak or nonexistent, and the wealth of record evidence that supports each of the district court’s findings. II. Factual Findings and Record Evidence Supporting the District Court’s Opinion In the district court, the parties presented competing evidence on both sides of the undue burden test. After careful consideration of the live testimony offered by the Plaintiffs, as well as each side’s sworn declarations, the district court made various findings of fact with regard to the extent of the obstacles imposed by the admitting-privileges provision and the questionable justifications for the provision in light of the record evidence. Specifically, with regard to the obstacles imposed by the admitting-privileges provision, the court found that: (1) as a result of the admitting-privileges provision, abortion clinics would close, Abbott, 951 F.Supp.2d at 900; (2) the “Rio Grande Valley would be left with no abortion provider because those providers do not have admitting privileges and are unlikely to get them,” id.; (3) each hospital’s bylaws are unique, requiring a variety of prerequisites, some of which abortion providers will be “unable to ever meet,” id. at 900-01; and (4) finding physicians for hire with active admitting privileges is “difficult because physicians’ contracts often bar them from providing ‘moonlight’ services as abortion providers,” and because physicians are “concerned about negative impact on their private practice ... either financially or as a result of attention from anti-abortion protestors,” id. at 901. With regard to the State’s justifications for the admitting-privileges provisions, the court found that a lack of admitting privileges on the part of an abortion provider “make[s] no difference” in the quality or timeliness of care received by an abortion patient in an emergency room, nor does it improve communication between abortion providers and emergency room physicians, id. at 899-900. The district court considered the State’s evidence in support of the law and concluded that it was too slight to justify the severe obstacles imposed by the admitting-privileges requirement on a woman’s right to obtain an abortion. We are obliged to review the district court’s findings of fact for clear error. See, e.g., Okpalobi, 190 F.3d at 342, 357 (reviewing a challenge to an abortion regulation and applying the clear error standard of review to the district court’s factual findings); Voting for America, Inc. v. Steen, 732 F.3d 382, 386 (5th Cir.2013) (“[T]he district court’s findings of fact are subject to a clearly-erroneous standard of review.”). Accordingly, when analyzing the district court’s factual findings, we ask whether they are “plausible in light of the record as a whole.” Rivera v. Quarterman, 505 F.3d 349, 360 (5th Cir,2007). “If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (citing United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 94 L.Ed. 150 (1949)). As discussed at length below, each of the five major findings by the district court is substantially supported by the record evidence and, consequently, is not clearly erroneous. Thus, the Abbott II panel’s reversal of these findings contravenes Supreme Court and Fifth Circuit precedent mandating clear error review. A. Obstacles On the obstacle side, the parties disagreed as to what effect the admitting-privileges requirement would have on current and potential abortion providers and what effect the elimination of abortion services in various counties of Texas would have on women seeking abortion. The Plaintiffs argued that the admitting-privileges requirement would pose a substantial obstacle because few, if any, of the doctors who provide abortions at their clinics will be able to secure the privileges required by the law and very few, in any, other doctors who have or could secure admitting privileges will begin performing abortions, either at the Plaintiffs’ clinics or in other settings within the state. As a result, one third of the abortion clinics in Texas will close, leaving abortion providers in only seven counties of Texas — the counties containing the major urban centers— and leaving many impoverished and rural areas, for example, the Rio Grande Valley, without any abortion providers. The Plaintiffs presented evidence that, as a result of the closure of approximately one third of Texas abortion clinics and the remaining clinics’ inability to meet the inevitably increased demand, approximately 22,000 women per year will be precluded from accessing abortion services in Texas. The State asserted that the obstacles for women would be minor and that the Plaintiffs’ doctors may be able to secure privileges that satisfy the law and that, if they are unable to, other doctors would take their places. The State further contended that, even if the admitting-privileges requirement renders abortions unavailable in some areas of Texas, women seeking abortion would experience only minimal obstacles or inconveniences that do not rise to the level of substantial obstacles. The district court rejected the State’s argument and concluded that clinics will close; the Rio Grande Valley will be without an abortion provider; current abortion providers will be unable to obtain the requisite admitting privileges; and it will be difficult or impracticable to secure new doctors to provide abortions at the closed clinics in Texas. As illustrated by the following summary of record evidence, the Abbott II panel erroneously disregarded the district court’s findings of facts and substituted its own de novo findings, although each of the district court’s factual findings are substantially supported by the record evidence. 1. The Closure of Abortion Clinics Plaintiffs presented the findings of Joseph Potter, Ph.D., who is an Associate Professor of Demography at the Harvard School of Public Health, a Professor of Sociology at the University of Texas, Austin, earned a Ph.D. from Princeton University in economics, and is the principal investigator for the Texas Policy Evaluation Project. Potter was certified by the court as an expert in demography, and testified to his expert opinions in this regard, and not merely as a “sociology professor” — as the Abbott II panel characterized him. See Abbott II, 748 F.3d at 591. Potter, after conducting a survey of data available from 2011 until the present and investigating, inter alia, the current status of abortion providers’ admitting privileges, concluded that the admitting-privileges provision will result in the loss of abortion clinics in six Texas counties— Bell, Cameron, Hidalgo, Lubbock, McLennen, and Tarrant — and that only seven counties in all of Texas will be left with an abortion provider. Based on Potter’s research, analysis, and calculations, he concluded that, if H.B. 2 goes into effect, at least a third of the clinics in Texas will close, and as a result, over 22,000 women annually will not be able to access abortion services. The Plaintiffs’ other evidence corroborated Dr. Potter’s findings. For example, Dr. Paul Fine testified that his organization’s Fort Worth surgery center will have to stop providing abortion services because all of the providers who reside in Dallas will be unable to obtain admitting privileges at the Fort Worth hospital. Amy Hagstrom-Miller, the Founder and CEO of Whole Woman’s Health (“WWH”), likewise testified that, in Fort Worth, the WWH facility — which accounts for one third of the abortion providers in the Fort Worth area — will close because the facility does not employ any physicians with local admitting-privileges. Dr. Fine further testified that, in West Texas (specifically, in Lubbock County and the city of Waco), all of the current providers travel from hundreds of miles away to provide abortion services and thus will be ineligible for admitting privileges at local hospitals. Additionally, Darrel Jordan, M.D., the Chief Medical Officer of Planned Parenthood of Greater Texas (“PPGT”), attested via sworn affidavit that, if the admitting-privileges provision takes effect, three of the four clinics that PPGT owns — namely, clinics providing abortion services in Austin, Fort Worth, and Waco — will close. From this evidence, the district court plausibly found that clinics throughout Texas will close. The Abbott II panel criticized the district court for its “vague” and “imprecise” findings. Abbott II, 748 F.3d at 597. However, perfect precision is not what is required to satisfy clear error review. The district court’s finding, while not specific or detailed, is adequately supported by the record evidence, plausible in light of the evidence taken as a whole, and thus not clearly erroneous. Rivera, 505 F.3d at 360; see also Voting for America, Inc., 732 F.3d at 386. 2. Rio Grande Valley Will be Without an Abortion Clinic The district court found that all “24 counties in the Rio Grande Valley [will] be left with no abortion provider.” Abbott, 951 F.Supp.2d at 900. The Abbott II panel concluded that this finding of fact was clearly erroneous for two reasons. First, the panel correctly notes that there are only four, not 24, counties in the Rio Grande Valley. However, as Plaintiffs contend, this error was likely typographical and probably a result of the court’s efforts to issue an opinion before the admitting-privileges provision was set to go into effect — less than one week after the completion of trial. Such an error does not render the district court’s finding that the Rio Grande Valley will be without an abortion provider clearly erroneous, given that (as will be discussed directly below) the record adequately supports the substance of this finding — that the region will lack any abortion providers after the admitting-privileges provision goes into effect. In addition to faulting the district court for its apparent typographical error, the Abbott II panel concluded that the court’s finding that the Rio Grande Valley would be without an abortion provider was clearly erroneous because the court only accepted evidence as to one of the two clinics in the Rio Grande Valley, and that the other evidence was excluded as hearsay. Abbott II, 748 F.3d at 597. Before H.B. 2 went into effect, there were two clinics in the Rio Grande Valley that provided abortion services — the WWH’s McAllen facility, and the Reproductive Health Care and Health Services Facility (“RHCHS”). The panel reasoned that because Amy Hag-strom-Miller’s testimony regarding the RHCHS facility was excluded as hearsay, the court only heard admissible evidence as to whether the WWH facility would close, and thus it was clearly erroneous to conclude that both clinics would close. Id. at 597, n. 12. However, the panel overlooks the un-objected-to live testimony of Andrea Ferrigno, the Corporate Vice President of WWH, which establishes, with admissible evidence, that both of the two clinics in the Rio Grande Valley will close. Specifically, Ferrigno. testified that the RHCHS Facility and the WWH’s McAllen facility will both close as a result of the admitting-privileges provision. At the time of trial, Ferrigno testified that the RHCHS Facility had already announced its impending closure, and that the WWH’s McAllen clinic would also close because none of its providers has admitting privileges, and therefore, “people won’t have access to safe legal services,in the entire Rio Grande Valley.” Id. This information regarding both clinics’ closures in the Rio Grande Valley is also contained in Ferrig-no’s sworn declaration, which was admitted into evidence by the district court under the residual hearsay rule, Fed.R.Evid. 807. See Abbott, 951 F.Supp.2d at 897, n. 3 (“The court overrules Planned Parenthood and the State’s objections [to the use of declarations at trial because] admitting the declarations will best serve the rules of evidence and the interests of justice.”) (emphasis added). Therefore, contrary to the Abbott II panel’s conclusion, the district court’s finding that the only two clinics in the Rio Grande Valley will close is not clearly erroneous because it was supported by admissible record evidence. 3. Abortion Clinic Physicians Will be Unable to Meet Hospitals’ Varying Prerequisites to Admitting Privileges The district court’s finding that each hospital’s bylaws are unique and have a variety of prerequisites for granting admitting privileges, some of which abortion providers will be unable to meet, is supported by the record. For example, Andrea Ferrigno testified that, before granting admitting privileges, hospitals have various facial requirements, including that the physician maintain a local residence, be board certified, and have a minimum number of hospital admissions and surgeries. Ferrigno testified that her current abortion providers would not qualify for many hospital admitting-privileges applications because they would not meet' the hospitals’ residency requirements nor do they have the number and type of prior hospital admissions typically required. For example, some hospitals require at least 50 deliveries, five C-sections, and 25 gynecological surgical procedures during the 24-month period preceding the physician’s application. Ferrigno testified that, in the last five years, her physicians have seen approximately 50,000 abortion patients, and only eight to ten of those patients required a transfer from the clinic to a hospital. Her providers thus do not regularly admit or treat patients at hospitals and, consequently, will not meet the hospitals’ admission or surgery prerequisites for obtaining admitting privileges. Further, many of the abortion providers completed their li-censures decades ago, when it was less common to have board certification, and therefore will not meet the board certification requirement. Likewise, Dr. Paul Fine testified that his organization’s Fort Worth surgery center will have to stop providing abortion services because all of the providers, who reside in Dallas, will be unable to obtain admitting-privileges at the Fort Worth hospital, which requires physicians to maintain a local residence. Dr. Jennifer Carnell similarly testified that, if abortion providers travel away from their county of residence to conduct abortion services — a common practice given that 87 percent of counties in the United States are without an abortion provider- — -then local Texas hospitals will not grant the physician privileges. For example, he testified that, in West Texas, where all of the providers travel hundreds of miles or from out of state to provide abortion services, the physicians will be unable to comply with the admitting-privileges provision. The district court therefore did not clearly err when it found that the vast majority of abortion providers in Texas will be unable to obtain admitting privileges at local hospitals. 4. Finding Local Physicians with Active Admitting Privileges is Difficult and Unlikely The district court found that abortion clinics will be unlikely to find physicians with active admitting privileges because physicians’ contracts often “bar them from providing ‘moonlight’ services as abortion providers,” and physicians are concerned about the negative impact on their careers by associating with an abortion provider, either for financial reasons or negative attention from anti-abortion protestors. Abbott, 951 F.Supp.2d. at 901. The district court directly referenced record evidence that supports this finding of fact. For example, the district court noted Amy Hagstrom-Miller’s testimony that some physicians’ contracts with hospitals “prevent] them from working with abortion care on the side.” The evidence further demonstrated that, even when abortion care is not forbidden outright, some local hospitals are averse to associating with abortion providers. For example, Andrea Ferrigno attested that in at least three attempts to contact hospitals about obtaining admitting privileges for her physicians, the hospitals’ personnel verbally discouraged her from pursuing an application “because of hostility against abortion providers among members of the hospital’s governing board.” Furthermore, the Plaintiffs presented evidence that hostility, harassment, and violence from anti-abortion protestors towards abortion providers, clinics, and patients will deter local physicians with admitting privileges from providing services. For example, Dr. Jordan attested that in the small and “extremely socially conservative community” of Fort Worth, any resident abortion provider would face “routine harassment, social and professional ostracism, and even a significant risk of violence (all of which extend to his or her family as well).” He added that, “[hjostility to abortion also makes it impossible to hire a new doctor who lives in Fort Worth and has privileges at a local hospital.” Similarly, Angela Martinez, the Clinic Director of Planned Parenthood Women’s Health Center in Lubbock, Texas, attested that antiabortion protestors harass the health center employees every day her clinic is open. Martinez explained that at her facility, anti-abortion protestors shout insults at us every day, take pictures of us (and take down license plate information), refer to employees by name, and have protested outside employees’ homes and posted pictures of employees online with their names. Because physicians are the biggest target of antiabortion harassment and violence ... I am unaware of any Lubbock physician ever having performed abortions .... [F]or decades ... the physicians who performed abortions [in Lubbock] have travelled ... from another part of the state, most frequently from Dallas. Likewise, Hagstrom-Miller testified that at the WWH facilities, they regularly have protestors, have received bomb threats, and receive threatening phone calls. Further, staff are followed and sometimes the physicians are harassed when they are coming to and from work. Hagstrom-Miller also testified regarding “Operation Rescue,” an anti-abortion effort that targeted two physicians, publishing their names online, apparently to encourage attention and further harassment from antiabortion protestors. Hagstrom-Miller testified that physicians will be deterred by this “very regular[ ]” occurrence of harassment and violence committed against abortion providers. She recalled at least two physicians who changed their mind about working for WWH and one who quit based on anti-abortion harassment. She testified that because of this local hostility, shu has been flying in two providers from out of state to be able to meet the needs of women in the local communities. The district court’s finding that abortion facilities are unlikely to be able to hire local physicians to perform, abortion services is thus adequately supported by the record. 5. Additional Record Evidence of Obstacles: Loss of Capacity, Poverty, Travel Distances, and Other Factors Affecting Access to Abortion In addition to the record evidence substantiating the district court’s express findings of facts, the Plaintiffs also presented evidence that supports the district court’s legal conclusions, but which the court neglected to reference expressly. First, the evidence established that, as a consequence of the clinic closures, the remaining clinics will be unable to meet the increased demand for abortion services, resulting in substantially diminished access to abortion for women in Texas. Dr. Potter explained that, while some clinics may remain in operation because they employ one or more physicians with local admitting privileges, these remaining clinics may have a reduced capacity, as not all of their physicians on staff have the requisite privileges. While capacity is reduced, the demand upon these limited facilities will be increased, as women who would have otherwise obtained abortion services from closed facilities, now will seek services at the remaining providers. Based on the increase in demand and simultaneous reduction in capacity, Potter found that in five of the seven counties [that will still have abortion clinics after the admitting-privileges provision goes into effect], there will be a substantial increase in the projected volume of services required due to closure of clinics in other counties that will no longer have a provider. Moreover, there will be a substantial reduction in the capacity to provide services in four of these five counties.... All told, the projected demand for abortion care statewide is 68,8889, and the expected capacity after implementation of the law is only 43,-850. The implication is that 25,039 women will not be able to access abortion care in the state, even if they could travel the long distances necessary to access the nearest clinic with capacity to serve them. Eighty-nine percent of this deficit, or 22,286 abortions, is due to closures that will occur as a result of the implementation of the challenged provision. The Plaintiffs presented Potter’s specific calculations regarding the capacity and demand for each county in which there would be a substantial change. For example, in Bexar County, where there were once eight abortion providers, after the admitting-privileges provision goes into effect, only three will remain — one of which will function at an extremely limited capacity. Therefore, the providers that will remain in operation in Bexar County will be unable to meet the demand for abortion services. Angela Martinez, the Clinic Director of Planned Parenthood Women’s Health Center, corroborated this evidence in her declaration, attesting that when nearby clinics in Midland, Abilene, and San Angelo closed in recent years, their Lubbock facility has as a result been “inundated with patient calls” and are currently “scheduling patients up to a month in advance.” Similarly, Hagstrom-Miller testified that in Austin she has one physician with privileges and one without so, after the admitting-privileges provision goes into effect, her capacity to provide services at her Austin facility will decrease by 50%. An inevitable result of the reduced capacity of abortion providers in Texas is an increase in delayed services for abortion patients. Potter attested that reduction in supply and increase in demand will mean that the “delays to obtain an appointment with many providers will increase, and some providers may turn patients away entirely.” (emphasis added). He attested that “[ajbortion is of course a time-sensitive procedure: having to wait a few weeks may make it impossible for women to get an abortion.” In addition to the increased demand and delay that the Plaintiffs’ established will result from the admitting-privileges provision, the evidence demonstrated that because of the various clinic closures, women in the panhandle and other parts of West Texas will have to travel vast distances to seek in-state abortions, and that a large percentage of women who seek abortion services are impoverished and will therefore be precluded from ever obtaining abortion services. Potter testified that, in the panhandle of Texas, women will have to travel 400-500 miles to access legal ■abortion services. He explained that “[s]ome women who would otherwise have gotten an abortion will be prevented from doing so by these burdens.” Potter also testified that the number of women across Texas who will be required to travel over one hundred miles to obtain an abortion will double, and that in “multiple counties,” the travel distance for women seeking abortions will “exceed 400 miles.” Furthermore, the evidence demonstrated that there will be no abortion clinics west of Interstate 35, requiring women in certain West Texas areas to travel between six and eight hours to access an abortion clinic. The Plaintiffs’ evidence established that nearly half of abortion patients in Texas are below the federal poverty line and therefore will be unlikely to be able to travel these long distances to access abortion services. Specifically, data from Dr. Potter’s research in Texas indicated that approximately 40% of women seeking abortion are at or below 100% of the Federal Poverty Guidelines.” Angela Martinez attested that most of Planned Parenthood Women’s Health Center’s clients in Lubbock are parents below the federal poverty line who “often have trouble obtaining use of a car and the resources to pay for gas, permission from their employer to take the necessary time off, and/or childcare.” As Potter attested, the burden of travel is higher for younger women, women of color, and low-income women, who have fewer resources to overcome the increased cost of further travel. Martinez’s experience confirms this, as she has repeatedly heard from patients that the additional distance will make it impossible for them to obtain an abortion. Martinez attested that, “[biased on [her] familiarity with [the clinic’s abortion] patients and their already-difficult situations, I believe that this change [in the law] would be extraordinarily difficult for almost all of our patients, and could prevent many of them from obtaining an abortion at all.” Ferrigno similarly testified that that the reality is that for women in the Rio Grande Valley to travel to Corpus Christi or San Antonio for abortion services will require “a lot of arrangements and expenses.” In addition to the Plaintiffs’ evidence that the admitting-privileges provision will severely diminish women’s access to abortion services, the evidence demonstrated that the provision will be particularly burdensome on women seeking abortions who have been pregnant for sixteen weeks or longer. Prior to implementation of H.B. 2, Texas law required that an abortion performed at sixteen or more weeks after pregnancy must be conducted at an ambulatory surgical center (“ASC”). At the time of trial, there were only six providers in the state that are licensed as ASCs. Potter attested that three of these ASCs will stop providing services as a direct result of the admitting privileges law, leaving only three operating ASCs in Texas (located in Dallas, Houston, and San Antonio). Dr. Jordan likewise attested that his facility (Planned Parenthood of Greater Texas) operates the only ASC in both Austin and Fort Worth — which are two of the six total ASCs providing abortion services in the state — and both of those facilities will have to close after enactment of the law. Therefore, women throughout all of Texas will only have three locations where they can legally obtain an abortion after sixteen weeks of pregnancy. In light of this abundance of evidence supporting the district court’s findings of facts regarding the ways in which H.B. 2’s admitting-privileges provision imposes obstacles upon a woman’s right to obtain a previability abortion, the Abbott II panel erred in rejecting the district court’s findings. B. Justifications The parties disagreed about the strength of the State’s justifications for the admitting-privileges requirement. According to the State, the admitting-privileges requirement has two strong justifications, both grounded in the State’s legitimate interest in protecting women’s health. Primarily, it argued that the requirement ensures proper care for complications. Furthermore, it asserted that the requirement has a secondary benefit of “credentialing” high-quality doctors. After considering the State’s evidence that was submitted to support its argument that the admitting-privileges provision advances patient care and protects women’s health, the district court rejected the State’s arguments and found that an abortion doctor’s “lack of admitting privileges is of no consequence when a patient presents at a hospital emergency room,” because “emergency-room physicians treat patients of physicians with admitting privileges no differently than patients of .physicians without privileges” and therefore the admitting-privileges provision has no effect on the quality or timeliness of care received, nor does it impact the ability of providers and physicians to communicate any necessary health information. Id. at 899-900. 1. Admitting Privileges Have No Bearing on Quality or Timeliness of Care, nor on Communications Between Abortion Providers and Emergency Room Physicians The Plaintiffs presented evidence that on the extremely rare occasion that an abortion patient requires hospital admission because of a complication from an abortion procedure, the patient is treated just as all patients are — she is indepen: dently assessed and diagnosed by the emergency room medical staff, without the need to rely upon a patient’s treating or referring' physician. Plaintiffs presented the testimony and sworn declaration of Dr. Paul Fine, who is board-certified in obstetrics and gynecology, a Fellow of the American Congress of Obstetricians & Gynecologists, a Professor in the Departments of Obstetrics & Gynecology and Urology at the Baylor College of Medicine in Houston, the Medical Director of Planned Parenthood Gulf Coast and Planned Parenthood Center for Choice, Inc., the Medical Director of Emergency Medical Services (“EMS”) for three cities in Galveston County, Texas, and who has nearly four decades of experience providing abortions, teaching abortion methods, and supervising the provision of abortion services. Dr. Fine testified that when an abortion doctor is unable to communicate with a treating physician or abortion provider, this does not hinder the care the patient receives. Rather, “[t]he treatment of most [abortion] complications are very straightforward ... and treated the same way.” If an abortion patient requires hospitalization for a com- - plication following an abortion procedure, medical staff at the hospital will determine whether an on-call ob/gyn will need to be involved, or whether another “sub-specialist” will be necessary to treat the patient. Dr. Fine attested that “all ob/gyns, regardless of whether they perform abortions, are qualified to manage the care of a patient experiencing a complication from an abortion.” In addition, Dr. Jennifer Carnell, an emergency physician, assistant professor at Baylor College of Medicine in emergency medicine, the director of the emergency ultrasound fellowship, and who is board-certified in emergency medicine, was certified by the court as an expert in the field of emergency medicine. Dr. Carnell testified that if an abortion patient presents at a hospital with a rare, severe complication, the abortioh provider will not be the physician performing the treatment; rather, the on-call ob/gyn at the hospital will provide the necessary care. Thus, an abortion provider’s inability to personally admit his patient into a local hospital does not impede the patient’s treatment in any way and does not constitute “abandoning” the patient, as the State contended. Instead, the patient is cared for by those physicians who can best perform the procedure— emergency room physicians who “do these surgeries every day.” Dr. Fine explained that admitting privileges are ... irrelevant to providing optimal care in the event of a complication because the physician who provides the abortion may not be the appropriate physician to manage the patient’s care in the hospital, regardless of whether the physician has privileges there. Given that abortions have such a low complication rate, abortion providers may ... only rarely perform the types of surgeries ... that may be necessary to treat a complication, while the on-call ob/gyn at the hospital will have more experience doing these procedures.... Dr. Fine also attested that “[g]iven how specialized the practice of medicine has become, particularly in a hospital setting, such handoffs to the appropriate specialists are common and necessary across medicine.” Dr. Fine further stated that the “admitting privileges requirement is ... unnecessary and irrelevant to providing optimal care because of the distances some women travel to obtain an abortion.” Dr. Fine explained that generally, when complications occur, a woman will begin to experience the complication after she has left the clinic and returned home. “If, after discharge from the abortion clinic, a woman who lives outside the area where she obtained her abortion experiences a complication that requires hospital treatment, it makes no sense for her to travel to be treated at a hospital near the abortion clinic just because her abortion provider has admitting privileges there.” Rather, she should and likely would go to the closest hospital emergency room to get prompt treatment. Dr. Fine explained that, “[i]n an emergency or potential emergency situation, no physician, or EMT, would countenance going further than necessary just to get to a hospital where her abortion provider has privileges.” Dr. Fine explained that the current professional standards therefore suggest only that abortion clinics have “arrangements in place for transferring patients who require emergency treatment,” but do not require that the “physician performing abortions have admitting privileges at a hospital.” Such is the recommendation from the American Congress of Obstetricians & Gynecologists, as well as Planned Parenthood Federation of America, and the National Abortion Federation. Moreover, prior to implementation of H.B. 2, Texas law required the same for abortions performed after sixteen weeks of pregnancy or later — riskier procedures than abortions performed before sixteen weeks that are required to be performed in a licensed ASC. And, notably, physicians who perform more dangerous outpatient surgeries at ASCs, such as hysterectomies or pelvic constructive surgeries, are likewise only required to have either written transfer agreements or hospital admitting privileges, and therefore are not required to have hospital privileges. Dr. Fine opined that in his expert opinion, “there is no reason to place a more onerous requirement on doctors who provide abortions prior to 16 weeks, ... than is placed on providers of much more risky [non-abortion] surgeries performed in ASCs.” The record evidence also established that legal abortion is one of the safest medical procedures in the United States. Jennifer Carnell, M.D., testified that in her nine years of experience in emergency medical care, she has seen less than ten patients come to the emergency room following an abortion procedure; only five of those patients actually required admission; and none were critically ill. The evidence established that the risk of a woman experiencing a complication that requires hospitalization is less than 0.3%. The risk of death associated with childbirth is approximately fourteen times higher than that associated with abortion, and every pregnancy-related complication is more common among women having live births than among those having abortions. In fact, the risk of death associated with abortion is almost three times less than that associated with using penicillin, which could in some rare cases result in anaphylactic shock. Thus, the few abortion patients who develop serious problems are referred, to hospital emergency room physicians who may call in other on-staff specialists if necessary. The evidence therefore established that it is not necessary for an abortion doctor to have admitting privileges to refer patients to a hospital emergency room doctor, and requiring them to have admitting privileges will not increase the speed or quality of medical care for the few abortion patients that need such attention after an abortion. Given the record evidence that emergency room physicians are adequately trained to assess and treat any abortion complications, and that in the rare instance of a severe complication from an abortion, the on-call ob/gyn is better suited to perform the necessary treatment, the district court did not clearly err by finding that the admitting-privileges provision does nothing to improve quality of care for abortion patients who require emergency treatment. Additionally, the Plaintiffs’ evidence supports the district court’s finding that the admitting-privileges provision does not improve communication between abortion providers and emergency room physicians, nor is there any evidence that such a communication problem exists. The Plaintiffs’ evidence